2014: No. 3 • FALL
Keeping BC lawyers informed
President ’s View
Lawyers and leadership / 2
C EO’s Pers p e c ti v e
Aboriginal mentorship program,
a made-in-BC answer / 4
N ews
Referendum called on TWU’s
proposed law school / 3
John Hunter, QC to receive
Law Society Award / 3
Benchers approve 2015 fees / 3
Gold medal presentations / 5
Annual general meeting / 6
Prac tic e
Practice tips: Making your
e-communications secure / 10
Ethics Committee opinions / 12
Practice watch / 14
C ondu c t & D is c ipl ine
Credentials hearings / 16
Feature
Conduct reviews / 17
The Aboriginal Lawyers Mentorship Program:
how it helps increase access / 7
Discipline digest / 18
PRESIDENT’S VIEW
S leadership
by Jan Lindsay, QC
Benchers’ Bulletin
The Benchers’ Bulletin and related
В­ ewsletters are published by the Law
n
Society of British Columbia to update BC
lawyers, articled students and the public
on policy and regulatory decisions of the
Benchers, on committee and task force
work and on Law Society programs and
activities. BC lawyers are responsible for
reading these publications to ensure
they are aware of current standards,
policies and guidelines.
Suggestions on improvements to the
Bulletin are always welcome — contact the
editor at [email protected].
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PHOTOGRAPHY
Brian Dennehy Photography: cover and
pages 4, 5 (right), 7, 8 (top) and 9
Photos submitted: pages 5 (left) and 8
© 2014 The Law Society of British Columbia –
see lawsociety.bc.ca > Terms of Use
Publications Mail Agreement No. 40064480
2
BENCHERS’ BULLETIN • FALL 2014
I had the opportunity to attend the welcoming session for first-year law students
at the University of Victoria in September.
It was the first time a female president of
the Law Society has addressed her daughter
entering law school, and I was honoured to
be there. I listened to Dean Webber speak to
his new students for the first time. He was
congratulatory and inspiring. His message
touched on many things, but what resonated with me was his description of law as the
translation between our grandest thoughts
and ideals and how we realize those values
in our day-to-day life.
Like the dean, I was a political science
student and was always interested in the
lofty ideas of the great thinkers and writers and their discourse on democracy,
autocracy, personal freedom and the “social contract.” The “social contract” is our
agreement with society to give up certain
freedoms and, in turn, to rely on the security, protection and predictability that
ordered society brings. We use the law
to create our rules around institutions
and behaviour, and to maintain a balance between personal freedom and state
В­authority.
The law provides the basis for how we
conduct ourselves, and the behaviour we
can expect of others. The law allows us to
change our expectations and, ultimately,
our social order. The law is not always
right, and history is full of examples of bad
laws, but we continue to strive for better
laws that will better reflect how we want
to organize our affairs.
Lawyers are well suited to take on
leadership positions in the law-making
process. Legislators ask government staff
lawyers to draft the legislation that will
be enacted to change the law in one way
or another. Lawyers are advocates and
counsel on cases that change the way we
interpret laws and previous decisions, and
В­lawyers advise clients and the public about
the law and how their affairs can be conducted to accord with the law. Lawyers
В­ecome judges, who ultimately decide
b
what the written law means and how it
В­applies on a case-by-case basis.
I am proud to be a lawyer, for all these
reasons, but especially for the leadership
opportunities it brings. As lawyers we hold
a respected place in society. We have credibility with the public. And even though we,
as lawyers, do not all agree on any given
issue, we have the ability to determine disputes in a peaceful, fair and respectful way.
We help to keep the “social contract” between all the moving parts.
And I am proud to be president of the
Law Society for 2014. Many have commented on what an interesting and challenging year it has been. That is so, but I
am pleased with the way we have continued to show leadership on issues that are
difficult to resolve. We have engaged in a
thorough, thoughtful, open and transparent process in which we have attempted to
apply the law, and to comply with the rules
that govern our Society and our processes.
Our rules provide for member input, and
we are now asking for that, in a very formal
way, by referendum. I hope that lawyers
will continue to show leadership on this
В­issue, and will participate in this very important decision. I hope that our members
will carefully consider all aspects of the issue, and consider the rights and freedoms
of all people.
The Law Society has also started to
chart the course for the next few years.
This includes developing our strategic plan
for 2015-17. Predictably, we have put the
­public’s access to legal services as a key
priority. We will continue to work with all
stakeholders to provide options and opportunity for the public to access the justice system and to have access to good,
competent legal services, in a timely and
В­cost-effective way. Again, we want to be
leaders on this issue, as we work with others to В­improve our justice system and how
our laws come to reflect our most noble
and lofty ideas.v
NEW S
Referendum called on Trinity Western University’s
proposed law school
On September 26, the Benchers passed a
motion to conduct a referendum of all BC
lawyers regarding the proposed law school
at Trinity Western University. The motion
will allow for all members of the Society to
vote on the resolution adopted at the special general meeting this past June in which
the Benchers were directed to declare that
the proposed law school at Trinity Western
University is not an approved faculty of law
for the purpose of the Law Society’s admission program.
The motion further states that the
resolution will be binding and will be implemented by the Benchers if at least onethird of all members of the Society in good
standing vote in the referendum, and twothirds of those participating vote in favour
of the resolution.
To be counted, ballots must be
rВ­eceived at the Law Society office by 5
pm on October 29, 2014. The referendum
votes will be counted on October 30; results will be published on the website later
that day.
Ballots will be mailed to members by
October 8. If you have not received a b
В­ allot
by October 15, or if you have any questions
about the referendum, please email us at
[email protected]
John Hunter, QC to receive 2014 Law Society Award
The
Benchers
have chosen John
Hunter, QC to receive the 2014 Law
Society Award. The
award is offered
every two years
to honour the lifetime contributions
of the truly exceptional within the
profession and the legal community, based
on integrity, professional achievements,
service and law reform.
The award, a bronze statue of Sir Matthew Ballie Begbie, will be presented to
Hunter at the Bench & Bar dinner on November 6, 2014; for more information on
the event, see the Calendar on the Law
В­Society website.
Hunter was called to the bar in 1977,
and is currently senior litigation counsel at
Hunter Litigation Chambers in Vancouver.
He is a leading practitioner in corporatecommercial litigation and is frequently
called upon as an arbitrator in commercial
disputes.
Elected a Bencher in 2002, Hunter
was President of the Law Society in 2008.
Hunter has also served as a representative and President of the Federation of Law
Societies of Canada, chairing the Federation’s Task Force on the Canadian Common
Law Degree. The task force’s 2009 report
strengthened the rules for new criteria and
provided a successful method of implementation across Canada.
Those nominating him for the award
commended Hunter as a leader in the bar
and a role model to the profession – a man
of intellect and integrity, who is unquestioned and admired by his peers.
Hunter is recognized nationally and
internationally as one of Canada’s leading
counsel; his 2013 amicus curiae appointment by the Supreme Court in the Senate
Reform Reference recently argued before
that court demonstrates the confidence
the top court holds in him.
His dedication to service is evident in
his exceptional volunteer contributions
and pro bono work. In addition to teaching
at the law schools, Hunter has written and
spoken on many topics as part of his commitment to continuing legal education,
В­especially in the area of legal ethics.v
The Bench & Bar dinner will be held on November 6 at the Westin Bayshore Hotel in
Vancouver, where the Law Society Award
and the CBA’s Georges A. Goyer, QC Memorial Award will be presented. For more
information, see the Calendar on the Law
Society website.
Benchers approve 2015 fees
The Benchers have approved the
2015 practice fee and insurance fee, as
recommended by the Finance and Audit В­Committee. The committee based its
recommendation on a thorough review
of the Law Society’s financial position, its
В­statutory mandate and strategic plan.
The total annual mandatory fee for
practising, insured lawyers for 2015 will
be $3,742, a 1.4% increase over 2014. The
practice fee will increase by $52 to $1,992
and the insurance assessment will remain
the same at $1,750.
More information and a detailed
breakdown and explanation of the 2015
fee are available on the website (Publications > Notices to the Profession).v
FALL 2014 • BENCHERS’ BULLETIN
3
CEO’S PERSPECTIVE
Aboriginal mentorship program,
a made-in-BC answer
by Timothy E. McGee, QC
The recent decision by the Supreme
Court of Canada that granted title to more
than 1,700 square kilometres of land in British Columbia to the Tsilhqot’in First Nation
speaks to the complex and multi-faceted
nature of Canadian jurisprudence. It is an
example of how Canadian law must co-exist and be balanced with Aboriginal law, and
that both legal systems should be properly
implemented in this country.
Many Indigenous people come from
communities where Aboriginal laws are
still followed and practised. They know
these laws intimately because they have
lived them. So, in an inter-societal legal
system, who better to explain and help
people better understand Aboriginal law
than Aboriginal people?
This is just one of the many important
reasons why increasing diversity in the
legal profession is a clear benefit. When
different perspectives are brought to the
table, conversations about the law become
more fruitful – arguments, and ultimately
decisions, are made by people who are
more informed.
The Law Society recognizes this advantage, and it is why the Aboriginal Lawyers Mentorship Program exists in order to
retain and advance Aboriginal lawyers in
BC, who are currently under-represented.
The Program matches senior counsel with
junior Aboriginal lawyers for a mentoring
relationship.
For this month’s Bulletin, we celebrate
the start of the Program’s second cycle.
The Program’s inaugural launch was on
National Aboriginal Day in 2013, and since
then, it has been wonderfully successful,
matching 20 mentor-mentee pairs. It is a
Aboriginal Lawyers Mentorship Program meet and greet
It was an evening filled with good food,
laughs and bonding, as dozens of lawyers came together to greet old friends,
and make new ones, too. The Aboriginal
Lawyers Mentorship Program launched its
second cycle in September with a “meet
and greet” reception hosted by Mandel
Pinder LLP in downtown Vancouver. The
event provided an opportunity for junior
Aboriginal lawyers to network with their
senior counterparts for a mentor-mentee
relationship. Law Society staff lawyer
Andrea Hilland, who oversees the program,
says the evening was a success with four
mentorship pairs matched that evening.
For more information on becoming a
mentor or a mentee, visit the Law Society
website or email [email protected]
4
BENCHERS’ BULLETIN • FALL 2014
made-in-BC answer to calls for improving
access to justice, because we know it is in
the public’s best interests that lawyers reflect who they serve.
As lawyers, many of us become occupied with our own careers; throw family
and a myriad of other obligations into the
mix, and we can become very busy people.
However, if you have the time, I encourage you to consider the mutual benefit of
providing guidance and support for junior
lawyers, whether through this program or
outside of it. You will read in the feature
story of the benefits to both mentor and
mentee.
To participate in the Aboriginal Lawyers Mentorship Program, please contact
Andrea Hilland, Law Society staff lawyer,
at [email protected] or 604.443.5727.v
NEW S
Gold medal presentations
Each year the Law Society awards gold medals to the graduating law students from the University of Victoria, University of BC and, for
the first time, Thompson Rivers University who have achieved the highest cumulative grade point average over their respective three-year
В­programs.
In 2014, gold medals were presented to Lisa Grantham of UVic (left photo, with Bencher Pinder Cheema, QC (left) and Dean Jeremy В­Webber),
Shawn Erker of UBC (right photo, with Law Society President Jan Lindsay, QC) and Taylor-Marie Young of TRU (photo unavailable).
Unauthorized practice of law
Under the Legal Profession Act, only
trained, qualified lawyers (or articled students or paralegals under a lawyer’s supervision) may provide legal services and advice
to the public, as others are not regulated, nor
are they required to carry insurance to compensate clients for errors and omission in the
legal work or claims of theft by unscrupulous
individuals marketing legal services.
When the Law Society receives complaints about an unqualified or untrained
person purporting to provide legal services,
the Society will investigate and take appropriate action if there is a potential for harm
to the public.
From February 13 to September 3, 2014,
the Law Society obtained undertakings
from 13 individuals and businesses not to
engage in the practice of law.
The Law Society has obtained orders
prohibiting the following individuals and
businesses from engaging in the unauthorized practice of law:
• Ravinder P. Randhawa, a.k.a. Ravinder
Bains and Ravinderpal Randhawa, held
herself out as a lawyer and provided
various legal services for a fee, including giving legal advice and preparing
divorce documents. Randhawa and her
company, Randhawa Immigration Services Ltd., consented to an injunction
permanently prohibiting Randhawa
from В­holding herself out as a lawyer and
prohibiting them from engaging in the
В­practice of law for or in the expectation
of a fee. (July 29, 2014)
• Francisco MacDugall, of Vancouver,
held himself out as a “private attorney”
entitled to engage in the practice of law
and provided various legal services to
others for a fee. MacDugall appeared in
court as an advocate, gave legal advice
and prepared various documents resembling what the courts have described
as “organized pseudo-legal commercial
arguments.” Madam Justice Watchuk
granted the Law Society an injunction
permanently prohibiting MacDugall
from engaging in the practice of law and
from falsely representing himself as a
lawyer, articled student or in any other
manner that connotes he is authorized
to practise law. The court also awarded
the Law Society its costs. (September 9,
2014)
• John Karlsson, a former lawyer of Youbou, BC, consented to an order permanently prohibiting him from representing
himself as a lawyer or from engaging in
the practice of law as defined in sВ­ ection
1 of the Legal Profession Act. (September
18, 2014)
• Bradley Jonathan Renford, a.k.a. Kim
Elton Horne, d.b.a. Concise Paralegal
Services, of Burnaby, drafted legal documents and provided legal advice for a
fee in a family law proceeding. On October 6, 2014, Madam Justice Koenigsberg granted an injunction permanently
prohibiting Renford from engaging in
the practice of law, including preparing
documents to be used in court proceedings or under statute, giving legal advice,
offering legal services and from representing himself as qualified or entitled
to engaging in the practice of law. The
court granted the Law Society its costs.
(October 6, 2014)v
FALL 2014 • BENCHERS’ BULLETIN
5
n ew s
Annual general meeting
Van Ommen is acclaimed as Second Vice-President-elect;
member resolution passes
Three hundred twelve lawyers and 11
students attended at the 14 locations established for the Annual General Meeting
on September 30.
Herman Van Ommen, QC was acclaimed as the Second Vice-Presidentelect. In nominating him, Bencher Nancy
Merrill referred to Van Ommen as a “gifted leader,”
and in seconding the motion, current Second VicePresident David Crossin, QC
said Van Ommen “always
conducts himself with good
faith, civility and the utmost
integrity.” Van Ommen will
begin his term as Second
Vice-President on January 1,
2015.
The member resolution
before the meeting passed
by a vote of 188 to 48. The
resolution directs the Law Society to require all legal education programs recognized by the Law Society for admission
to the bar to provide equal opportunity
w
В­ ithout discrimination. The Benchers will
consider the result of the vote at an upcoming meeting.v
In Brief
Reminder: Survey on legal
В­services in BC
As reported in E-Brief, the Legal Services Regulatory Framework Task Force
is conducting surveys of the public, lawyers and legal service providers to study
the legal needs in the community, and
whether those needs are being met. The
focus of the work is to improve access
to legal services, particularly in low to
middle-income brackets.
The deadline to complete the В­survey
is October 31, 2014. For more information or to access the survey, follow the
links in the highlight on the website.
Judicial appointment
Sandra Harper, a lawyer with Harper
and Company in Victoria, was appointed
a master of the Supreme Court of BC
(Vancouver).v
News from the Law Foundation
Law Foundation grants – a statistical
overview
In spite of financial challenges caused by
ongoing low interest rates, the Law Foundation continues to fund 88 continuing and
on-track programs and 26 projects that
contribute significantly to improving access
to justice in BC.
The statistical highlights of the Law
Foundation’s accomplishments in 2013
В­include:
• over 89,000 people received legal information, advice, summary service or
representation from foundation-funded advocates or lawyers, in all regions
of the province;
• over 100 public interest cases or regulatory hearings were completed;
• over 550 law students were ­supported;
6
BENCHERS’ BULLETIN • FALL 2014
• 126 publications were created by programs and made available online and
in print (with over 126,000 hard copies of legal education resources being
distributed);
• significant law reform and research
work was done;
• the 30 law libraries continued to serve
the profession and the public, answering over 21,000 information requests
from the public and over 26,000
from the profession, and serving over
19,000 users via public access computers;
• 46 lawyers and 72 advocates were
funded in various full and part-time
positions.
Graduate fellowships
The Law Foundation will issue up to six
graduate fellowship awards of $15,000 for
the 2015-2016 academic year. Applicants
must be residents of British Columbia;
graduates of a BC law school; or members
of the BC Bar who are in full-time graduate
studies in law or a law-related area.
All applications and supporting material must be received at the Law FВ­ oundation
offices by January 7, 2015. For more information about the fellowships and the
В­application process please refer to the Law
Foundation website at lawfoundationbc.
org (under Funding Available > Graduate
Fellowships).v
f e atu re
The Law Society sponsored an Aboriginal Lawyers Mentorship Program meet and greet in September (see page 5 for more on the event).
Several mentees from the first year of the program attended, including (left to right), Nathaniel Lyman, Steven Carey, Mary Mollineaux,
Keith Brown and Kris Statnyk.
The Aboriginal Lawyers Mentorship Program:
how it helps increase access
This past summer, Joanna Recalma was
faced with a difficult decision.
The lawyer and mother had been
working at a small firm in Nanaimo and,
after remaining with that firm for her first
year of practice, she was considering making the jump into solo practice.
“It was nerve-racking,” Recalma said.
“I was examining what I was earning from
the fee share, and the hours I was working,
and although I was grateful for my experience and articles, I thought perhaps it was
best I try practising on my own.”
The University of Victoria law school
graduate is originally from the Qualicum
(Pentlatch Nation) and Alert Bay (’Namgis
Nation) and signed on to become a mentee when the Aboriginal Lawyers Mentorship Program began in 2013. While she
was armed with tenacious grit and a law
В­ egree, Recalma also had a lot of questions
d
about practising alone. Before making her
decision, she sought advice from the mentor she had met through the program.
Recalma had been paired with a senior
В­
lawyer from Victoria.
“My mentor was able to meet me
at the last minute, he was so flexible. He
was so generous and giving of his time on
an unpredictable schedule,” she said. “He
FALL 2014 • BENCHERS’ BULLETIN
7
f e at ure
practising law are and how to
work through that,” Hilland
said. “A lot of that is not necessarily obvious ... there’s no
how-to guide on it.”
The ultimate goal of the
program is to retain and advance Aboriginal lawyers who
are currently underrepresented
in the legal profession in BC.
According to the 2012 Law Society report, Towards a more
representative legal profession:
Andrea Hilland, Staff Lawyer, Policy & Legal Services
better practices, better workplaces, better results, only 160
lawyers — or 1.5 per cent of the
made my choice into solo practice much profession — are of Aboriginal descent,
easier.”
while First Nations people represent 4.6
As expected, the first month of her per cent of BC’s population.
venture met with some challenges, but
Hilland cites several factors contribnow in her fourth month on her own, uting to the underrepresentation of AbВ­Recalma is busy with her practice. In fact, original lawyers, such as socio-economic
she is so busy that, for the moment, she is issues, and a desire for many of Aboriginot accepting new clients.
nal В­ancestry to stay in their communities,
Recalma’s successful transition into ­
preventing them from pursuing a legal
solo practice demonstrates how the Ab- education.
original Lawyers Mentorship Program
“Another reason is a distrust of the
helps junior Aboriginal lawyers in their ca- Canadian legal system,” Hilland said. “It’s
reers. The program is administered by the a lot of effort to become a lawyer, and a lot
Law Society, with help from the Canadian of times it’s difficult for many to get that
Bar Association, and pairs junior Aboriginal far because they’re disillusioned by the
lawyers with senior lawyers for a mentor- ­Canadian legal system, so they don’t want
mentee relationship.
to study it.”
The program recently launched its
second cycle after a tremendously successful first year.
“We had a goal to match 20 pairs, and
we met that goal,” Andrea Hilland said.
Hilland is the Law Society staff lawyer who
oversees the program. “We also had 17 additional senior lawyers who were on a wait
list to become mentors.”
The program is open to junior lawyers
and law students with Aboriginal ancestry
who wish to be mentees. While mentors
do not need to be of Aboriginal ancestry,
they are asked to have an understanding of
Joanna Recalma
issues related to the retention of Aboriginal lawyers in British Columbia.
Once a mentor and mentee are
However, the training, retention
matched, they remain in contact through and advancement of Aboriginal lawyers
phone calls, in-person meetings or elec- ­contribute to the strength of the legal protronically – giving the junior lawyer the fession, particularly in the area of Aborigiopportunity to receive career advice from nal law, according to lawyer and mentor
someone who is more experienced.
В­Cheryl Sharvit.
“Junior lawyers want to know what
“Aboriginal law is supposed to be
the ins and outs of the business part of inter-societal law. It’s supposed to reflect
8
BENCHERS’ BULLETIN • FALL 2014
Indigenous laws and legal systems,” said
Sharvit, who has been practising Aboriginal
law for 15 years. “Indigenous people with
a foot in both worlds are the best people
to explain [Indigenous law] to our judges
and to ensure the proper implementation
and operation of both legal systems in
Canada.”
Tina Dion, a lawyer of Aboriginal ancestry and a mentor in the program, goes
even further when speaking about the benefits of retaining Aboriginal lawyers.
“Canadian law is for all of us, but there
are some unique aspects of our laws that
apply directly and specifically in connection with Aboriginal peoples. I am not just
referring to the large basket of �Aboriginal
law,’ constitutional rights-based issues,
but to other areas of law as well, such as
criminal, family, administrative, elder,
child welfare, and so on, that also require
the Aboriginal perspective,” Dion said.
“Through the development of these
areas of the law – which are always
­dynamic – lawyers who bring that unique
perspective can only enhance the development of these laws, and our profession. It
is also imperative, though, that Aboriginal
lawyers be supported in practising in broad
areas and not just those areas that touch
on �Aboriginality,’ because with broader
practice and participation, comes the
В­potential increase in the number of Aboriginal judges at all levels, which will begin to
address that current underrepresentation.”
It is the under-representation of Aboriginal lawyers that could be discouraging
Aboriginal people from seeking legal advice and services when facing legal issues.
“People want somebody who knows
the issues personally,” Hilland said.
“Somebody who is coming from a similar
community background might have that
context so that the client doesn’t have
to explain everything. They might anticipate that somebody from a similar background might have more empathy for their
­situation.”
The Law Society believes increasing
diversity within the legal profession is part
of improving access because the public is
best served when members of the profession reflect the communities that they
В­represent.
Recalma agrees. As a family and child
protection lawyer, she says her Aboriginal
clients are more at ease when they learn
f e atu re
she shares a similar background.
“There’s an immediate relaxing,”
­Recalma said. “When I first meet an Indigenous client, I ask, �Where are you from?’
Our identity is very much connected to
where we’re from. When they learn where
I am from there is just a moment of recognition that we have a common, or shared
history.”
“One stereotype is that Indigenous
people are silent, or that we don’t express
ourselves well because we do not understand an issue. Well, that’s not the case.
We are articulate and have a clear understanding of our own situations and certainly strong opinions on how best to move
forward. Although I agree that there can
sometimes be a hesitance when expressing opinions while navigating the justice
system, I believe that hesitance is rooted
in a lack of trust with an institution that’s
generally been used as a tool against us.”
Hilland hopes the program can help
increase the number of Aboriginal lawyers
in the province, thereby serving smaller
communities outside the Metro В­Vancouver
“Canadian law is for all of us, but there are
some unique aspects of our laws that apply directly and specifically in connection
with Aboriginal peoples. I am not just referring to the large basket of �Aboriginal
law,’ constitutional rights-based issues,
but to other areas of law as well, such as
criminal, family, administrative, elder,
child welfare, and so on, that also require
the Aboriginal perspective.”
– Tina Dion
where there is a greater proportion of
В­Indigenous populations.
“A lot of Aboriginal lawyers from
smaller communities feel connected to
communities and generally feel inclined to
work there,” Hilland said. “Aboriginal lawyers have a propensity to serve Aboriginal
people.”
And, while the Aboriginal Lawyers
Mentorship Program provides an obvious
benefit to Aboriginal lawyers and Aboriginal people in the province, the mentors
have found that fostering junior lawyers by
providing cultural or career guidance can
be extremely rewarding.
“If offering my time, experience and
advice will assist an Aboriginal student or
new call get into, and not only remain, but
advance within the profession, then I am
happy to do so because their participation
enhances the diversity necessary in our
profession,” Dion said.
“Ultimately, it is about feeling like
we belong in this profession – because we
do.”v
Some of the mentors who participated in the first year of the program (left to right): Andrea Hilland, Anja Brown, Cheryl Sharvit, Tina Dion
and Maria Morellato, QC.
FALL 2014 • BENCHERS’ BULLETIN
9
PR ACTI CE
Practice tips, by Dave Bilinsky, Practice Management Advisor
Making your e-communications secure
в™« Everyone has secrets
Don’t tell anyone … ♫
Lyrics by Kim Eana, recorded by Kpop
These days, with the Snowden revelations and news of continual large-scale surveillance of the internet by the “Five Eyes”
(USA, Britain, Canada, Australia and New
Zealand), there is increasing interest in how
to protect solicitor-client communications.
Solo and smaller firms are now inquiring
about how they can send and receive
secure emails and documents with
their clients, as they are concerned
about the perceived lack of privacy
when using traditional email. There is
the increasing realization that ordinary
email may not be a great way to communicate with your clients.
Wikipedia states:
After 180 days in the U.S., email
messages stored on a server lose
their status as a protected communication under the Electronic
Communications Privacy Act,
and become just another database record. After this time has
passed, a government agency
needs only a subpoena — instead of
a warrant — in order to access email
from a provider. Other countries may
even lack this basic protection, and
Google’s databases are distributed all
over the world.
But there are other reasons for sending
secure communications, aside from concern that governments may be reading our
emails. All of us, at one time or another,
have sent an email to the wrong person.
If the communication is sensitive but not
secured, then the wrong recipient can
read the contents (and attachments) and
could forward them on to others. If the
communication intended for your client
was instead sent to opposing counsel, you
can see how this could create ethical and
legal problems for you and your client. If
the communication (and attachments) are
encrypted, however, the substance of the
message is still secure.
Further, you or your clients may be
10
BENCHERS’ BULLETIN • FALL 2014
t­argeted. In “Hackers linked to China
sought Potash deal details: consultant,”
the Globe and Mail reported:
At least seven law firms were targeted
in attacks that Daniel Tobok, president
of Toronto-based Digital Wyzdom
Inc., believes are also linked to hacking that paralyzed federal government
computer systems last year.
Most of these attacks were decoys, he
said, meant to distract anyone tracing
the activity from what he believes was
the hackers’ real goal: Getting information about BHP Billiton Ltd.’s ultimately unsuccessful $38-billion bid
for Potash Corp. in 2010.
There are several ways you can make your
communications more secure and protected from spying eyes of all types.
Person-to-person: This is decidedly
not high-tech, but if you deliver an encrypted flash drive or CD directly to your
client, then you have totally avoided the
risks of transferring information over the
internet. Using an encrypted flash drive
or CD ensures that, if the device is lost
or stolen in transit or from your office or
the client’s, the information is still secure,
assuming you used a strong encryption
method. Of course, the password or phrase
to decrypt the document would have to
be exchanged with your client (and not
by email or a similarly insecure method!).
However, while this method is high on the
security and privacy scale, it is not terribly
convenient.
Encrypted communication using ordinary email: You can use ordinary email
to deliver a fully encrypted document as
an attachment. The email need only say
“Please see attached.” Again, the password
or phrase to decrypt the document must
be exchanged securely with your client.
Encryption security is only as strong
as the password protection in your
application. Newer software, such as
Adobe Acrobat version XI, is better
than older versions. However, your
best efforts can be defeated if you use
a weak password that can be hacked
by any number of freely available
password cracking programs. A quick
Google search, for example, will turn
up a host of password-cracking applications – some of which may install
malware on your computer in addition to the cracking software.
The convenience of using this
method is somewhat tempered by
the fact that, while the attachment is
encrypted, the email itself is not and
the email metadata can be sniffed
(revealing the sender and the recipient,
the time of sending, and more). Some experts claim that much information can be
gleaned just by noting the volume of email
sent between parties. An increase in the
level of email, for example, could indicate
something important is going on.
Individual encrypted email: Here,
both parties use a commercial encryption
application to encrypt and decrypt a message and any attachments. This is typically
combined with attaching a digital signature to the email. According to Wikipedia:
A digital signature is a mathematical scheme for demonstrating the
authenticity of a digital message or
document. A valid digital signature
gives a recipient reason to believe
that the message was created by a
known sender, such that the sender
cannot deny having sent the message
(authentication and non-repudiation)
P R AC T I C E
and that the message was not altered
in transit (integrity). Digital signatures
are commonly used for software distribution, financial transactions, and
in other cases where it is important to
detect forgery or tampering.
Encryption combined with a digital signature assures the recipient that the communication was not altered and was sent by
the right person.
A good encryption program can be difficult and cumbersome to use, and both
you and your client need to have the system in order for this to work. There are
systems that allow you to send an encrypted message without the client having
the same program installed, but the client
usually cannot respond with their own
В­encrypted message.
Some firms have installed a specific
device on their network that encrypts all
email without the user’s intervention, such
as an encryption management server, and
forces security compliance. It also manages and stores the keys used to encrypt and
decrypt messages, making the user’s experience that much easier. This would require
that all important buy-in from your clients
(not to mention your staff as well).
Third-party secure services: There are
service providers that allow for the secure
transfer of information. However, security
expert Bruce Schneier warns in his blog
that the NSA is actively trying to penetrate
and break these services.
The notorious Edward Snowden purportedly used Lavabit, a secure email
­service that was designed to protect users’ privacy. However, the US government
served the company with a court order to
turn over the private SSL key that would
В­allow it to read all the emails on the service.
Lavabit complied, but then closed soon after, citing an inability to safeguard customers’ privacy. At least one other secure email
service company was also reported to have
closed, to avoid being caught in a similar
situation.
Other companies still offer secure
email services, but there is always the risk
that they, too, will close and your communications may be lost.
Wi-fi and mobile computing risks:
For very good reason, most organizations
have a policy that confidential information
is not to be transferred through any public
(i.e., unsecured) wi-fi network.
Kapersky Lab, the internet security
company, states:
In a recent survey, 70% of tablet owners and 53% of smartphone / mobile
phone owners stated that they use
public Wi-Fi hotspots. However, because data sent through public Wi-Fi
can easily be intercepted, many mobile device and laptop users are risking
the security of their personal information, digital identity, and money. Furthermore, if their device or computer
is not protected by an effective security and anti-malware product … the
risks are even greater.
Risks of public wi-fi are identified in “6
wireless threats to your business,” an article published on Microsoft.com. Also, in
“Convenience or security: you can’t have
both when it comes to Wi-Fi,” TechRepublic warns about the Wi-Fi Pineapple ­device,
which captures passwords and other
В­sign-on credentials when people use public
wi-fi.
In my view, this is enough evidence
that every workplace should prohibit the
exchange of client or other work-related
communications via unsecured public В­wi-fi.
Secure client portals: Another alternative to email is to use a secure client
portal. A portal is a private webpage that
provides access to authenticated and authorized users only via a browser to digital
files, calendars and other information. The
advantage of a secure client portal is that
nothing travels along the email backbone
of the internet; all communications take
place within the portal.
Wikipedia has this to say about lawyers and secure client portals:
Due to the nature of the industry, law
firms make up a significant amount
of client portal users. This is because
lawyers are constantly collaborating
and interacting with clients, involving
a significant amount of paperwork. In
these cases the file sharing functionality is imperative.
Conclusions: It is a matter of judgment
as to the appropriate level of security to
place around solicitor-client communications, knowing that ordinary email is not
very secure at all. After all, everyone has
secretsВ ...v
Services for lawyers
Practice and ethics advisors
Practice management advice – Contact
David J. (Dave) Bilinsky to discuss practice
management issues, with an emphasis on
technology, strategic planning, finance, productivity and career satisfaction.
email: [email protected] tel: 604.605.5331 or
1.800.903.5300.
Practice and ethics advice – Contact Barbara Buchanan, Lenore Rowntree or Warren
Wilson, QC to discuss ethical issues, interpretation of the Code of Professional Conduct
for British Columbia or matters for referral to
the Ethics Committee.
Call Barbara about client identification and
verification, scams, client relationships and
lawyer/lawyer relationships.
Contact Barbara at: tel: 604.697.5816 or
1.800.903.5300 email: [email protected].
Contact Lenore at: tel: 604.697.5811 or
1.800.903.5300 email: [email protected].
Contact Warren at: tel. 604.697.5857 or
1.800.903.5300 email: [email protected].
All communications with Law Society practice
and ethics advisors are strictly confidential,
except in cases of trust fund shortages.
пЃµ
Optum Health Services (Canada) Ltd. –
Confidential counselling and referral services
by professional counsellors on a wide range
of personal, family and work-related concerns. Services are funded by, but completely
independent of, the Law Society and provided at no cost to individual BC lawyers and
articled students and their immediate families. tel: 604.431.8200 or 1.800.663.9099.
пЃµ
Lawyers Assistance Program (LAP) – Confidential peer support, counselling, referrals
and interventions for lawyers, their families,
support staff and articled students suffering from alcohol or chemical dependencies, stress, depression or other personal
problems. Based on the concept of “lawyers
helping lawyers,” LAP’s services are funded
by, but completely independent of, the Law
Society and provided at no additional cost to
lawyers. tel: 604.685.2171 or 1.888.685.2171.
пЃµ
Equity Ombudsperson – Confidential assistance with the resolution of harassment
and discrimination concerns of lawyers,
articled students, articling applicants and
staff in law firms or other legal workplaces.
Contact Equity Ombudsperson, Anne Bhanu
Chopra: tel: 604.687.2344 email: achopra1@
novuscom.net.
FALL 2014 • BENCHERS’ BULLETIN
11
PR ACTI CE
Ethics Committee opinions
The Ethics Committee has approved these
opinions for publication as guidance for the
profession.
Advancing funds to a client to
cover the cost of В­disbursements,
medical expenses or living
В­expenses
It is common practice for lawyers to pay
the cost of client disbursements, particularly when clients are unable to afford
them and the lawyer expects the funds to
be recovered when the case is resolved.
This practice is not contrary to the rules,
and some court decisions have approved
it: see Franzman v. Munro 2013 BCSC 1758
and Chandi v. Atwell 2013 BCSC 830 (currently on appeal). Less common, but a
not infrequent practice, is when a client’s
financial situation compels a lawyer to advance funds to pay for the client’s medical
treatment or living expenses.
The BC Code has a number of provisions that restrict and regulate the circumstances under which lawyers can advance
funds to clients. The following summary is
intended to assist lawyers to stay within
the rules.
When a lawyer pays the client’s disbursements and charges interest on those
costs, the lawyer must:
• disclose the charge in writing in a
timely fashion (rule 3.6-1);
• ensure the charge is fair and reasonable (rule 3.6-1); and
• ensure the client consents to the
charge (rule 3.6-1).
When a lawyer advances funds to a client
to cover expenses other than disbursements (such as medical costs and living
expenses), and charges interest on those
costs, the lawyer must:
• disclose the charge in writing in a
timely fashion (rule 3.6-1);
• ensure the charge is fair and reasonable (rule 3.6-1);
• ensure the client consents to the
charge after receiving independent legal advice (rule 3.4-28); and
• be in compliance with BC Code rule
3.4-26.1, which prevents a lawyer from
advancing funds to a client if there is a
12
BENCHERS’ BULLETIN • FALL 2014
substantial risk that the lawyer’s loyalty to or representation of the client
would be materially and adversely
affected by the lawyer’s relationship
with the client or interest in the client or the subject matter of the legal
services. In practical terms, this means
that a lawyer may not advance funds
to a client if the advance would reasonably be expected to affect the lawyer’s professional judgment. Depending on such matters as the size of the
loan, the strength of the client’s case,
the client’s chances of repaying the
loan if the case fails and the lawyer’s
own financial circumstances, the loan
may cause the lawyer to prefer his or
her own interest in being reimbursed
to that of the client’s cause.
Lawyers who have questions about how
these standards affect their practices may
discuss the issue with a Law Society practice advisor or ask the Ethics Committee
for guidance in a particular case.
Joint retainer by police officers
under investigation
In response to Commissions of Inquiry into
police-related deaths, the BC Legislature
established the Independent Investigations Office (IIO) to investigate incidents
of death or serious harm involving police
officers and special provincial constables in
the province. The IIO opened in September
2012. Part 7.1 of the BC Police Act requires
the IIO to investigate “incidents” in which
police may have caused death or serious
harm, including, but not limited to, criminal activity by the police.
All provincial police agencies have
entered into a Memorandum of UnderВ­
standing (MOU) with the IIO to enable the
IIO to coordinate its investigations into
police incidents. Section 15 of the MOU
provides:
15.1 To prevent contamination of evidence, officers involved in or present
during an incident which may fall within the jurisdiction of the IIO shall not
В­communicate their accounts or recollections of the incident directly or indirectly
to anyone other than an IIO investigator, except for communication that is
В­ ecessary for:
n
(a)public safety and obtaining medical
care for injured persons;
(b) the securing or identification of evidence;
(c) the furtherance of concurrent investigations;
(d) obtaining advice from legal counsel
or a police association representative;
(e) obtaining health care for an officer; or
(f) any other purpose that is agreed
upon by the IIO investigator and the
police service liaison officer.
BC Code rules 3.4-5 to 3.4-9, which cover
joint retainers, require that, before a lawyer is retained by more than one client in
a matter or transaction, the lawyer must
advise each of the clients that:
(a) the lawyer has been asked to act for
both or all of them;
The committee has concluded that, as a
general rule, a lawyer should not jointly
advise or represent two or more police
officers under investigation for, or witnesses to, a serious incident that arose in
the course of their duties.
(b) no information received in connection with the matter from one client
can be treated as confidential so far
as any of the others are concerned;
and
(c) if a conflict develops that cannot be
resolved, the lawyer cannot continue
to act for both or all of them and may
have to withdraw completely.
The IIO has asked the Ethics Committee
whether a lawyer may jointly advise or
represent two or more police officers who
are under investigation for, or witnesses to,
a serious incident that arose in the course
of their duties.
The committee is of the view that
the MOU would place a lawyer retained
to act for more than one police officer
P R AC T I C E
with В­respect to the same investigation by
the IIO in a conflict. That lawyer would be
bound by the joint retainer rules to share
information received from one police officer client with another police officer client.
However, the lawyer would be prevented
from doing so by Section 15.1 of the MOU,
which requires that officers not indirectly
communicate with each other concerning their involvement in the incident. The
committee has concluded that, as a general rule, a lawyer should not jointly advise
or represent two or more police officers
under investigation for, or witnesses to, a
serious incident that arose in the course of
their duties.
The Law Society of Upper Canada has
reached a similar conclusion, although
the basis of that conclusion is a regulation
made under the Ontario Police Services
Act, rather than an MOU. In Information
for Lawyers — Acting for Police Officers in
Ontario Special Investigations Unit (“SIU”)
Investigations, the Law Society of Upper
Canada advises:
As the [Law Society] rule requires that a
lawyer cannot treat information as confidential as between joint clients and the
regulation requires that the police officers not indirectly communicate with
each other concerning their involvement
in the incident, it is difficult to see how
segregated police officers can properly
be jointly represented.
Lawyers should also review the Supreme
Court of Canada decision in Wood v.
Schaeffer 2013 SCC 71, where the Court
concluded that the Ontario Police Services Act and regulations prohibit subject
and witness officers from consulting with
counsel until the officers have completed
their police notes and filed them with the
chief of police.
Lawyers who, in spite of this Ethics
Committee opinion, feel they have a good
reason for jointly representing two or more
police officers in these circumstances,
should contact the committee for an opinion on the propriety of doing so.v
Discipline advisory
You are facing a Law Society investigation. What do
you need to know?
Simple answer: You must cooperate.
The Law Society considers all complaints
about lawyer conduct or competency, receiving over 1,100 each year. So it wouldn’t
be surprising if, at some point in your career,
you receive a letter from us asking for a
В­response to a complaint.
As a lawyer, you have a duty to cooperate with Law Society investigations,
including complaint and forensic investigations. Refusal to cooperate may lead to
a citation and a disciplinary hearing, independent of the original complaint.
Law Society Rule 3-5(6) sets out the
positive obligation for a lawyer to cooperate fully with a Law Society investigation.
Rule 3-5(6.1) lists many of the Law Society’s investigative powers, including the
power to require a lawyer to:
• produce files, documents and other
records for examination or copying;
• attend an interview and answer questions;
• cause an employee or agent of the
lawyer to answer questions and provide information.
Lawyers have an obligation to cooperate
even if the information sought by the Law
Society is privileged or confidential (Rule
3-5(10)). Lawyers also have an obligation
to cooperate regardless of whether they
are the subject of the complaint in question.
The Code of Professional Conduct for
British Columbia also emphasizes the ethical duty of a lawyer to cooperate. Rule 7.1-1
provides that a lawyer must:
The public must have confidence in the
Law Society’s ability to investigate and
regulate its members.
• reply promptly and completely to any
communication from the Law Society;
• provide documents as required to the
Law Society;
• not improperly obstruct or delay Law
Society investigations, audits and inquiries;
• cooperate with Law Society investiga-
tions, audits and inquiries involving
the lawyer or a member of the lawyer’s firm;
• comply with orders made under the
Legal Profession Act or Law Society
Rules; and
• otherwise comply with the Law Society’s regulation of the lawyer’s
В­practice.
We recognize that lawyers may be very
concerned to learn they are the subject
of a complaint investigation. If it happens
to you, it is important to deal with the
situation promptly. Consider talking with
a senior lawyer who is experienced in Law
Society matters, and if it is a serious allegation, you may wish to retain counsel to
represent you.
The public must have confidence in
the Law Society’s ability to investigate and
regulate its members. As a result, the Law
Society relies on prompt and complete replies from lawyers during investigations to
uphold its paramount duty of protecting
the public interest and the administration
of justice.v
FALL 2014 • BENCHERS’ BULLETIN
13
PR ACTI CE
Practice watch
by Barbara Buchanan, Practice Advisor
IMPROPER TO GIVE ANONYMOUS
ADVICE FOR A FEE
As a lawyer, you may be approached by
companies asking you to give legal advice
to clients anonymously over the internet.
Although the BC Code doesn’t include a
specific rule that says lawyers must identify
themselves to clients, it is the Ethics Committee’s view that it is implicit in all of the
Law Society’s rules of conduct that they
must do so. Clients cannot know whether
a lawyer is conflict-free and otherwise suitable unless they know the lawyer’s identity.
The committee further opined that it is
improper for a lawyer to give anonymous
В­advice for a fee.
Giving anonymous advice may also
violate Code rule 3.6-7, the fee-sharing
rule, and Law Society Rule 3-63(3), which
requires a lawyer to deliver a bill or receipt
to the client. Other issues that may arise
include the ability to properly screen for
conflicts and to comply with the client
identification and verification rules.
USE OF CHECKLISTS RECOMMENDED
Don’t miss an important step. Whether
you are recently called or a senior lawyer,
checklists help keep you organized, preventing errors and complaints. You can
keep track of what work you’ve completed
and what is outstanding. Sometimes, the
checklist will flag potential issues that may
not have occurred to you. Some checklists
provided by the Law Society on its website
include:
• Client identification and verification
procedure
• Ethical considerations when a lawyer
leaves a firm
• Independent legal advice
• Model conflicts of interest
• New firm (Trust Assurance)
• Cloud computing
• Practice Checklists Manual
Practice Checklists Manual – new
В­updates
Check out the 2014 updates to the Law
Society’s Practice Checklists Manual (in
14
BENCHERS’ BULLETIN • FALL 2014
the Practice Support and Resources section of the website). The manual consists
of 41 checklists to assist in managing your
files and in carrying out your professional
obligations. They are available in PDF but
also in Word format, so that you can revise
them to suit your personal needs and circumstances. The following checklists have
recently been updated to incorporate new
developments:
• Family – Family Practice Interview,
Family Law Agreement Procedure,
Separation Agreement Drafting, Marriage Agreement Drafting, Family Law
Proceeding, and Child, Family and
Community Service Act Procedure
• Wills and Estates – Will Procedure,
Testator Interview, Will Drafting, Probate and Administration, Probate and
Administration Procedure
• Litigation – Foreclosure Procedure,
General Litigation Procedure, Personal
Injury Plaintiff’s Interview or Examination for Discovery, Collections Procedure, Collections – Examination in Aid
of Execution, Builders Lien Procedure
• Real Estate – Residential Conveyance Procedure, Mortgage Procedure,
Mortgage Drafting
Watch for updates to the rest of the manual later in 2014. If you have suggestions
for improving the manual’s content, please
send them to Barbara Buchanan at [email protected]. The manual has been
developed by the Law Society with the
В­assistance of the Continuing Legal Education Society of BC.
CLIENT CONFIDENTIALITY
В­CONSIDERATIONS FOR LAWYERS
В­OBTAINING LOANS
Some financial institutions ask borrowers
to sign a general security agreement (GSA)
as a matter of course for operating lines
SCAM ATTEMPTS AGAINST BC LAWYERS ABOUND
Scamsters continue to pretend to be BC lawyers’ legitimate new clients, either using
the phony debt collection scam or other ruses. Whatever their stratagem, the scamster’s end goal is usually to coerce a lawyer to deposit a fraudulent financial instrument (often a bank draft or certified cheque) into a trust account, and then to trick the
lawyer into electronically transferring funds to the scamster before the lawyer finds
out the instrument is no good. The scams range from the obvious to the very sophisticated and everywhere in between.
Scam attempts against BC lawyers in 2014 include schemes around mergers and
acquisitions, personal injury settlements between employer and employee, collecting
on franchise agreements, copyright infringement claims, bogus real estate purchasers,
CRA tax claims, commercial loans, personal loan agreement claims, unpaid invoices,
collaborative divorce agreement claims and fake lawyers.
Protect yourself. Get familiar with the common characteristics of these scams and
the risk management tips on our website (go to Fraud: Alerts and Risk Management).
Review the bad cheque scam names and documents web page as part of your firm’s
intake process. Appoint someone in your firm to ensure that lawyers and relevant staff
are kept up to date with new information from the Law Society.
The Law Society (Margrett George and Surindar Nijjar from the Lawyers Insurance
Fund, and Barbara Buchanan, Practice Advisor), and the Continuing Legal Education
Society of BC, have presented a free webinar for lawyers regarding these scams: The
bad cheque scam – don’t get caught. Videos from the webinar are available on CLE’s
website.
Report potential new scams to [email protected]. Reporting allows us to notify
the profession, as appropriate, and update the list of names and documents on our
website.
P R AC T I C E
of credit. If your financial institution asks
you to grant a GSA, consider whether it is
necessary and appropriate in the circumstances. Read the GSA carefully and make
sure that you understand it. Typically, such
agreements include the generic wording
that is used for all businesses — trucking companies, hardware stores, furniture
stores, etc. All of a borrower’s assets, such
as client lists, work in progress and accounts receivables, generally fall into the
hands of a receiver. Assuming the GSA provides for a receiver to be appointed, take
possession of the client files and data and
run the business, there would typically
be no requirement that the receiver be a
lawyer. Even if the receiver
is a lawyer, there may still
be concerns, particularly
around conflicts and confidentiality.
Consider whether signing a GSA would compromise your obligation to
maintain client confidentiality and solicitor-client
privilege under section 3.3
of the BC Code in the event
of your default. If the GSA
only charges specific assets
that don’t contain client
information (e.g., furnishings), client confidentiality should not be compromised.
A lawyer at all times must hold all
information concerning the business and
affairs of a client in strict confidence with
limited exceptions (rules 3.3-1 and 3.3-2.1).
Further, a lawyer must not use or disclose
a client’s information to the disadvantage
of the client, or for the benefit of the lawyer or a third person without the client’s
В­consent (rule 3.3-2).
The Ethics Committee has opined that
it is not improper for a lawyer to make a
general assignment of practice receivables
or to permit the assignee to exercise rights
under the assignment, provided the rules
governing client confidentiality are not
compromised.
LAWYERS SHARING SPACE
Thinking of sharing space with another
lawyer? When lawyers who are not partners or associates in the conventional
sense intend to share space, immediate
concerns are potential conflicts of interest
between the clients of the space-sharing
lawyers and the duty of confidentiality
owed to clients. Before entering into such
an arrangement, lawyers should decide
whether or not they will act for clients adverse in interest, since it may make a difference to the physical office requirements
and staffing.
What about sharing space with a nonlawyer? The Ethics Committee is of the
view that the standard for sharing space
with non-lawyers is even higher than it is
for sharing with lawyers.
The Law Society’s article Lawyers
Sharing Space (in the Practice Support and
Resources section of the website) addresses BC Code rules 3.4-42 and 3.4-43, which
specifically relate to lawyers sharing space.
The article covers conflicts, confidentiality and marketing, and also includes some
practical considerations that affect spacesharing relationships (e.g., avoiding being
in an apparent partnership) and specific
considerations about sharing space with
non-lawyers.
Space sharing with other lawyers can
be beneficial if it is done properly. If in
doubt as to the proposed nature of your
set-up or the activities that you can carry
out within the parameters of the Law Society Rules or the BC Code, consider calling a
Practice Advisor.
RETAINER AGREEMENTS – EXPRESSING
AN ANNUAL RATE OF INTEREST ON
OUTSTANDING ACCOUNTS
In a recent decision, the court allowed
iВ­nterest at five percent per annum simple
interest on a law firm’s outstanding accounts, since the retainer agreement expressed a claim for interest solely as a
monthly percentage (Harper Grey LLP v.
Calimbas, 2014 BCSC 961). The retainer
agreement stated in part: “Accordingly, if
our accounts are not paid within 30 days of
the date of the billing date, we will charge
interest at the rate of 1.4% per month,
compounded monthly, until the outstanding account is paid.” The court noted the
requirements of sections 3 and 4 of the Interest Act, R.S.C., 1985, c. I-15 in coming to
the decision:
3. Whenever any interest is payable by
the agreement of parties or
by law, and no rate is fixed
by the agreement or by law,
the rate of interest shall be
five per cent per annum.
4. Except as to mortgages
on real property or hypothecs on immovables,
whenever any interest is,
by the terms of any written or printed contract,
whether under seal or not,
made payable at a rate or
percentage per day, week,
month, or at any rate or
percentage for any period
less than a year, no interest exceeding the rate or
percentage of five per cent
per annum shall be chargeable, payable or recoverable on any part of the
principal money unless the contract
contains an express statement of the
yearly rate or percentage of interest to
which the other rate or percentage is
equivalent.
In this case, the retainer agreement had expressly set out the interest rate, but it was
expressed for a period of less than a year so
only 5 per cent simple interest per annum
was allowed.
Further information
Contact Practice Advisor Barbara Buchanan at 604.697.5816 or bbuchanan@lsbc.
org for confidential advice or more information regarding any items in Practice
Watch.v
FALL 2014 • BENCHERS’ BULLETIN
15
cond u ct & discip l ine
Credentials hearings
Law Society Rule 2-69.1 provides for the publication of summaries of
credentials hearing panel decisions on applications for enrolment in
articles, call and admission and reinstatement.
For the full text of hearing panel decisions, visit the Hearing decisions
В­section of the Law Society website.
ANTHONY JAMES LAGEMAAT
Hearing (application for enrolment): March 6 and 7, 2014
Panel: Elizabeth Rowbotham, Chair, Lance Ollenberger and Donald
В­Silversides, QC
Decision issued: July 22, 2014 (2014 LSBC 31)
Counsel: Gerald Cuttler for the Law Society; Dennis Murray, QC for
В­Anthony James Lagemaat
BACKGROUND
In 2010, a hearing was held to consider the application for temporary articles by Anthony James Lagemaat. In the decision of the hearing panel (application for enrolment as a temporary articled student
2010 LSBC 23 and 2010 LSBC 25; Credentials hearing, Winter 2010
Benchers’ Bulletin – all published as Applicant 3), Lagemaat did not
meet the burden of proving good character and repute and fitness to
become a barrister and solicitor, and his application for enrolment
was rejected.
DECISION
In January 2013, Lagemaat applied to be enrolled in the admission
program as an articled student, and the Credentials Committee ordered that a hearing be held with respect to the application.
The hearing panel took into consideration the findings of the 2010
panel that rejected Lagemaat’s application for temporary articles on
the basis that he was not sufficiently forthright, truthful and frank
and that he had not satisfied the panel that he was sufficiently rehabilitated.
The panel also considered current evidence about Lagemaat’s character, reputation and fitness.
The panel reviewed counselling reports and a psychological assessment from Lagemaat’s counsellor and was satisfied that he had
В­successfully dealt with his psychological issues.
Lagemaat consistently maintained that the allegations of sexual assault and confinement in 2000 were false. In February 2014, a Law
Society investigator interviewed two women who had previously
been in relationships with Lagemaat. Based on their information, the
panel concluded that Lagemaat did not have a tendency toward violence against women.
The panel also determined that it was unlikely that Lagemaat would
16
BENCHERS’ BULLETIN • FALL 2014
ever engage in illegal activity similar to those of the 2000 and 2004
marijuana cultivation incidents.
Lagemaat was genuinely remorseful for the consequences his landlord suffered as a result of the 2004 marijuana cultivation incident. In
2012, he apologized to her and undertook to compensate her, regardless of the outcome of the hearing. While he could have taken these
steps much earlier, the panel was heartened by his reconciliation with
the landlord and by her support of his enrolment application.
Lagemaat’s continuing volunteer work was consistent and appeared
to be founded on a dedication to help those less fortunate, rather
than on a motivation to simply create a pretense of good works. The
panel was impressed by the empathy he appeared to have with those
he was serving and his genuine concern for them.
The panel gave a great deal of weight to letters of reference from lawyers in the law firm where Lagemaat works as a full-time employee
conducting legal research and providing opinions on matters of criminal law.
Lagemaat acknowledged his mistakes, expressed remorse and did
not seek to blame others. Nor did he pretend that he would not face
further struggles in his life. The panel concluded that he was likely
to deal with future problems and stresses in an honest and forthright
manner.
The panel was satisfied that Lagemaat had been fully rehabilitated
and was currently of good character and repute and fit to become a
barrister and a solicitor of the Supreme Court. The panel did not find it
necessary or appropriate to impose any conditions on his enrolment
as an articled student.
The panel granted Lagemaat’s application for enrolment as an articled student and ordered that he pay $2,000 in costs.
GLEN CAMERON TEDHAM
Hearing (application for enrolment): June 12, 2014
Panel: Nancy Merrill, Chair, Gavin Hume, QC and Laura Nashman
Decision issued: August 7, 2014 (2014 LSBC 34)
Counsel: Henry Wood, QC for the Law Society; Michael Tammen, QC for
Glen Cameron Tedham
When Glen Cameron Tedham applied for enrolment, the Credentials
Committee raised issues about his history.
In 1994, Tedham was charged with shoplifting in California at age 23.
He was convicted of misdemeanour trespassing, was fined and placed
on probation for 12 months. Tedham candidly admitted that he knew
that this action was wrong and unacceptable.
In 2005, Tedham was charged and convicted under the Customs Act
for failing to declare alcohol that had been purchased in the United
cond u ct & discip l ine
States. Tedham explained that it was his view that he should simply
answer the questions of the customs officer and no more. He recognizes that this was not appropriate and is more careful and complete
about his declarations when crossing the border.
In 2010, Tedham was charged and convicted under the BC Motor
Vehicle Act for disobeying a railway stop sign. He was working at a
film shoot and took a production vehicle across the tracks without
stopping, as he could see that the tracks were clear. He paid the fine
shortly after the ticket was issued.
Tedham filed for personal bankruptcy in October 2003 and was discharged in July 2004. His debts totalled $900,000 and were largely
related to his involvement in the movie-production business. This was
of considerable concern to the panel, given the trust the public places
in lawyers with respect to the handling of trust funds. However, the
panel accepted that Tedham was subject to financial circumstances
beyond his control at the time.
In December 2010, Tedham was driving while intoxicated and hit a
construction barrier. He was charged and subsequently convicted under the BC Motor Vehicle Act for failing to remain at the scene of an
accident, failing to produce a driver’s licence, and driving without due
care.
After this accident, Tedham entered into a regime associated with Alcoholics Anonymous and, with the support of the Lawyers Assistance
Program, he has been sober since October 2011.
An addiction specialist advised the Law Society that Tedham suffers
from a substance abuse disorder. In the specialist’s professional opinion, Tedham’s history indicates that he had successfully entered into
stable abstinent remission from that medical condition.
After completing his third year of law school, Tedham worked at a
law firm in various capacities, latterly with the permission of the Law
SВ­ociety as a paralegal. This law firm committed to employ him as a
student and to provide appropriate supervision during his articling
year.
The panel reviewed letters of recommendation, including ones from
the principal of the law firm where Tedham works and from the lawyer who is his sponsor in the AA program and also a member of the
Lawyers Assistance Program Accountability Group. Both lawyers fully
supported Tedham’s application for articles.
The addiction specialist made recommendations of steps to be taken
to ensure that Tedham would remain medically fit to become an articled student. Tedham agreed to all of the recommendations. The
panel asked the parties to reduce their apparent agreement to writing
for its consideration.
The limitations and conditions agreed to included that Tedham:
1. article and practise only in a law firm or other business setting in
which he is supervised by at least one lawyer with a minimum of
eight years of call who is in active practice;
2. not be a signatory on a trust account; and
3. comply with all of the recommendations made in the addiction
specialist’s report.
Tedham must also instruct his monitor to report promptly to the Law
Society any non-compliance with the monitoring or relapse-prevention agreements and submit a report to the Credentials Committee
every 12 months while monitoring is in place and at the end of the
monitoring period.
The panel concluded that Tedham was currently of good character
and repute and fit to be an articled student. In order to ensure that he
remains fit, the panel ordered that Tedham comply with the terms of
the agreement during his articles and recommended that the Credentials Committee continue the terms for a three-year period of practice following his call and admission.v
Conduct reviews
The publication of conduct review summaries is intended to
В­assist lawyers by providing information about ethical and conduct
standards.
A conduct review is a confidential meeting between a lawyer
against whom a complaint has been made and a conduct review
В­subcommittee, which may also be attended by the complainant at
the discretion of the subcommittee. The Discipline Committee may
order a conduct review pursuant to Rule 4-4, rather than issue a citation to hold a hearing regarding the lawyer’s conduct, if it considers
that a conduct review is a more effective disposition and is in the public interest. The committee takes into account a number of factors,
including:
• the lawyer’s professional conduct record;
• the need for specific or general deterrence;
• the lawyer’s acknowledgement of misconduct and any steps
taken to remedy any loss or damage caused by his or her conduct; and
• the likelihood that a conduct review will provide an effective
В­rehabilitation or remedial result.
Breach of undertaking
A lawyer failed to honour his undertaking to request that settlement
funds be paid to him rather than his client so that the funds could, in
turn, be used to pay the client’s former lawyer’s accounts, contrary to
continued on page 23
FALL 2014 • BENCHERS’ BULLETIN
17
cond u ct & discip l ine
Discipline Digest
below are summaries with respect to:
• Amarjit Singh Dhindsa
• Tim Yao-Yuan Xia
• Ronald Wayne Perrick
• Thomas Paul Harding
• Douglas Bernard Chiasson
For the full text of discipline decisions, visit the Hearings В­reports section of the Law Society website.
related to the transaction.
The sale of the property completed on March 1, 2012. On June 1, the
purchaser’s lawyer advised the legal assistant that one of the mortgages and one of the assignments of rents remained outstanding.
The legal assistant did not investigate this matter further and did not
bring it to Dhindsa’s attention.
On July 4, 2012, the purchaser’s lawyer reported Dhindsa to the Law
Society.
Admission and disciplinary action
AMARJIT SINGH DHINDSA
Abbotsford, BC
Called to the bar: June 8, 2001
Discipline hearing: January 15, 2014
Panel: Thomas Fellhauer, Chair, Paula Cayley and John Waddell, QC
Oral reasons: January 15, 2014
Decision issued: April 17, 2014 (2014 LSBC 18)
Counsel: Carolyn Gulabsingh for the Law Society; Gerald A. Cuttler for
Amarjit Singh Dhindsa
Facts
On February 2, 2012, Amarjit Singh Dhindsa was retained to act for
a client who had entered into a contract to sell property to another
company.
On February 10, the purchaser’s lawyer sent Dhindsa a letter setting
out the undertakings upon which he would send the net sale proceeds to Dhindsa in trust. The undertakings included requirements
that Dhindsa provide, within five business days, a copy of his letter
to the bank enclosing the payout monies, and obtain a discharge of
mortgage and an assignment of rents in a timely manner.
Dhindsa met with his client on February 24 and then assigned primary
responsibility for this transaction to a legal assistant who was experienced in conveyancing.
Dhindsa’s conveyancing staff were informed of the importance of using a checklist in the client file for diarizing and following up in order
to fulfill undertakings and obtain discharges on a timely basis. His
staff were also instructed to bring to his attention any issues or problems that arose. Dhindsa did not review or audit files prior to closing
the file to ensure the conveyance had completed and that all obligations were performed.
During the course of the transaction, Dhindsa’s legal assistant prepared conveyance documents and letters to the vendor, the purchaser’s lawyer and the bank. Two letters were incorrectly dated. Dhindsa
did not review any letters sent out on his behalf, and his legal assistant did not copy him on any incoming correspondence or emails
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BENCHERS’ BULLETIN • FALL 2014
Dhindsa admitted that he committed professional misconduct by
failing to honour the trust conditions imposed by the purchaser’s
lawyer and by abdicating his professional responsibility to maintain
the client’s file, properly delegate tasks and adequately supervise
his staff. Dhindsa admitted that he breached the rules by failing to
deliver a five-day report detailing that he had delivered funds to the
lender and had not obtained discharges from the lender in respect of
a mortgage and an assignment of rents, contrary to the rules.
Dhindsa had virtually no oversight over his client’s file. After meeting
with his client on February 24, 2012, he did not review the file again
until he was advised of the complaint to the Law Society. This was
the first time that he learned that the undertakings were not being
fulfilled, discharges were not obtained and reporting letters were not
completed.
Dhindsa accepted the undertakings requested by the purchaser’s lawyer; however, he did not take any steps to actually ensure that those
undertakings were complied with. He did not discuss the undertakings with his staff or follow up with them. He also did not prepare any
report to comply with the rules.
The panel considered Dhindsa’s professional conduct record as an
В­aggravating factor because he had a prior history of breaching an
В­undertaking.
Dhindsa took steps to fulfill the undertakings immediately after he
became aware that they had been breached. The panel noted that
there was no discernible advantage gained by Dhindsa by his misconduct. While the purchaser may have suffered some inconvenience
and potential increased legal costs, there did not appear to be any
other consequence of significance.
The panel accepted Dhindsa’s admissions and ordered that he pay:
1. a $5,000 fine; and
2. $2,500 in costs.
The panel ordered that the citation, the agreed statement of facts and
the transcripts of the hearing be sealed to protect confidential client
and third-party information. The public has access to the essential
information to understand the context of Dhindsa’s professional misconduct and the reasons for the panel’s decision.
cond u ct & discip l ine
TIM YAO-YUAN XIA
Vancouver, BC
Called to the bar: May 20, 1994В Discipline hearing: March 27, 2014
Panel: David Mossop, QC, Chair, Jasmin Ahmad and Clayton Shultz
Oral decision (facts and determination): March 27, 2014
Decision issued: June 11, 2014 (2014 LSBC 24)
Counsel: Kieron Grady for the Law Society; Henry Wood, QC for Tim YaoYuan Xia
any direct harm or resulted in any adverse consequences to any party.
There was also no evidence that Xia or his client gained any advantage as a result. The agreement did not require a witness to the signatures and was valid even without Xia purporting to witness it.
Xia’s professional conduct record disclosed a history of involvement
with the Practice Standards Committee that indicated that he had, at
least in the past, struggled with practice standards. At the time of the
hearing, he was conducting his practice under a practice supervision
agreement.
Facts
The panel considered Xia’s early admission of wrongdoing as a mitigating factor.
On October 31, 2008, Tim Yao-Yuan Xia met with a new client and
was asked to draft a marital separation agreement. The client advised
Xia that his wife was in agreement with the terms.
The panel accepted Xia’s admission of professional misconduct and
ordered that he pay:
Xia prepared the separation agreement. His client signed it and Xia
witnessed his signature. The client told Xia that he would arrange for
his wife’s signature on the separation agreement in the presence of
another lawyer.
On November 8, 2008, the client requested that Xia prepare the necessary paperwork to effect a transfer of property to his son. Based on
his client’s instructions, Xia prepared a transfer document, which was
signed by his client and witnessed by Xia.
The client also presented copies of two one-page agreements between him and his son, both dated March 31, 2004. One agreement
was signed by the son and witnessed by a notary public.
The other agreement only had the signatures of the son and client
and did not indicate that it had been witnessed by anyone. Xia was
asked to witness the signatures of the client and his son that were
already on this agreement.
Xia advised the client that the agreement was legally binding without
witnesses to the signatures. However, the client was insistent and requested that Xia “formalize” the agreement by signing it as a witness.
Xia signed the agreement as witness to the signatures contained in it
and affixed his stamp.
Xia did not witness the signature of either his client or the son contained on the agreement, nor did he affix a date when he purported
to witness the two signatures. By signing as a witness, Xia confirmed
that the signatures were genuine.
Admission and disciplinary action
Xia admitted that his conduct in affixing his signature as a witness to
the agreement when he had not witnessed either of the signatures
constituted professional misconduct.
By affixing his signature to the agreement, Xia falsely represented
that he witnessed the parties’ execution of the agreement on the date
specified. This false statement cast doubt on Xia’s professional integrity and reflected adversely on the integrity of the legal profession.
There was no evidence that the signatories to the agreement signed
the documents for any improper purpose or that Xia’s conduct caused
1. a $3,000 fine; and
2. $1,000 in costs.
RONALD WAYNE PERRICK
North Vancouver, BC
Called to the bar: May 17, 1971
Discipline hearings: October 21, 2013 (application concerning abuse of
process), October 21, 22, 23, 24 and 25, 2013 and April 25, 2014
Panel: David Renwick, QC, Chair, John (Woody) Hayes and Bruce LeRose,
QC
Oral reasons: October 21, 2013
Decisions issued: January 16 (2014 LSBC 01), January 23 (2014 LSBC 03)
and June 12, 2014 (2014 LSBC 25)
Counsel: Alison Kirby for the Law Society; Ronald Wayne Perrick on his
own behalf
Facts
In April 2003, Ronald Wayne Perrick was retained by the shareholders
of a company with respect to the sale of their property. The shareholders were a husband and wife, each of whom owned 50 per cent of
the voting shares, together with their four children. Perrick knew that
the parents were the sole officers, directors and voting shareholders
of the company, and that the property represented all, or substantially all, of the assets of the company.
One of the parents died in December 2004 and the other died in October 2005. Perrick was aware of each of the deaths shortly after they
occurred.
The property was sold for $5.75 million with a closing date of February 9, 2006. The sale proceeds were deposited into Perrick’s law firm
trust account. A dispute quickly arose as to when the money would be
distributed and the amount of Perrick’s fee.
The 11 allegations in this case are listed in five categories:
Improper use of expired powers of attorney
In 2006, Perrick prepared an Assignment of Shares and witnessed the
signatures of two of the siblings, as attorneys for the parents, when
FALL 2014 • BENCHERS’ BULLETIN
19
cond u ct & discip l ine
he knew that the parents were deceased, and that the powers of attorney were no longer valid. He knew that the parents’ wills directed
that one son would receive the voting shares so he could continue on
with the business, but that would only occur upon their deaths.
Perrick was careless and failed to properly instruct his staff to record
trust transactions within seven days. His client trust ledger showed
that the entries in the trust account were made haphazardly, out of
time and out of sequence to events as they transpired.
Perrick acknowledged that he had a significant self-interest in ensuring that the real estate transaction completed, as his fees were contingent upon the closing.
Although Perrick was aware that legal counsel was retained by the
company with respect to a dispute over his fees, he continued to withdraw monies from his trust account.
Backdating assignment of shares
He withdrew fees prior to the delivery of a bill to his client.
When preparing the Assignment of Shares in 2006, Perrick backdated it to October 21, 2004. He knew that the company’s corporate
solicitor would be preparing documentation approving the property
sale and the transfer of voting shares based on the backdated assignment. Perrick suggested that the end justified the means as all parties
wanted the sale to complete and they wouldn’t be concerned how it
happened.
Determination
Failure to provide quality of service
A judge determined that Perrick had removed the funds from trust
without rendering a statement of account pursuant to the rules. As
Perrick had not disclosed what he had done with the money, the
court ordered judgment against him and the law firm for the sum of
$926,916 plus interest. The court also determined that Perrick’s misconduct precluded him from claiming fees.
Perrick did not keep his client reasonably informed of the handling
of the disbursement of trust funds. On March 2, 2006, he provided
the company with a spreadsheet showing his all-inclusive fee of
$926,916.
The panel ruled that the Law Society was entitled to rely upon the
judge’s reasons and that those findings established a prima facie case
against Perrick with respect to 10 of the 11 allegations. The panel further ordered that Perrick was prohibited from re-litigating those issues as it would result in an abuse of process.
The client was not advised of the basis for Perrick’s fees. The company
retained legal counsel who made numerous requests for an accounting from Perrick. After instructing their legal counsel to commence
court action, Perrick rendered his statement of account on June 15,
2006. However, he only disclosed that the funds had been withdrawn
from trust on November 28, 2006.
The panel found that Perrick’s actions in these allegations amounted
to professional misconduct, with the exception of his failure to record
trust transactions within seven days, which was a breach of the rules.
The panel dismissed an allegation of failure to account to the client
as it was duplicative of another allegation in which professional misconduct was established.
Perrick did not take reasonable steps to determine who was authorized to give instructions on behalf of the company. To facilitate the
completion of the sale on February 9, 2006, Perrick prepared the
backdated assignment, allowing one sibling to become the directing
shareholder for the company. Until then, he was taking his directions
on behalf of the company from another sibling. Perrick failed to recognize that there were competing interests among the siblings.
Failure to respond to communications from another lawyer
Perrick failed to respond promptly to communications from opposing
counsel regarding the handling and disbursement of the trust funds.
He tried to justify this by stating that he had provided the accounting
to the company and did not need to respond to opposing counsel’s
communications.
Breach of rules
Perrick did not enter into a written contingent fee agreement with the
company or any members of the family. However, it was conceded
that he would not charge them anything if he did not complete the
sale of the property, but if he was instrumental in selling the property, there would be some form of a fee. He arbitrarily and unilaterally
fixed the fee calculation, took the monies from trust, and then tried
to justify his actions by preparing a fee account.
He failed to account to his client for funds entrusted to him.
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BENCHERS’ BULLETIN • FALL 2014
Disciplinary action
The panel considered significant aggravating factors. Perrick had engaged in multiple serious instances of professional misconduct in order to fulfill his client’s goal of completing a commercial real estate
transaction, and then his own goal of receiving a substantial legal fee
for his services.
Perrick never admitted nor acknowledged any misconduct. In order
to obtain an accounting of the trust funds and a proper legal bill for
the services rendered, the victims had to retain new counsel and commence lengthy and onerous court proceedings.
The panel determined that the disciplinary action must send a strong
message to Perrick that his management of this file was not only
irresponsible, but also unethical and could not be condoned in the
least. The panel felt that, ordinarily, a 90 day-suspension would be
warranted in the case. However, given Perrick’s age, his 43 years of
practice with a clean discipline record and, particularly, the fact that
the Law Society was not seeking a suspension, the panel imposed a
fine of $15,000 for backdating and improper use of documents and an
additional $10,000 for other misconduct and breaches of the rules.
The panel ordered that Perrick pay:
1. a $25,000 fine, and
2. $24,210 in costs.
cond u ct & discip l ine
THOMAS PAUL HARDING
what transpired during Harding’s visit was recorded.
Surrey, BC
Called to the bar: August 31, 1990
Determination
Citation issued June 18, 2013
Discipline hearing: April 29 to May 1, 2014
Panel: Cameron Ward, Chair, Dennis Day and Brian J. Wallace, QC
Decision issued: June 27, 2014 (2014 LSBC 29)
Counsel: Robin McFee, QC for the Law Society; Gerald Cuttler for Thomas
Paul Harding
Facts
In June 2012, Harding agreed to assist his mother-in-law with a possible claim arising from a motor vehicle accident. Her vehicle was
rendered inoperable and had been towed to a secure compound at a
towing facility.
Harding went to the towing facility to take pictures of the damage to
his mother-in-law’s vehicle before it could be moved or altered. He
was concerned that liability for the accident might be an issue, making the nature of the damage important.
Harding spoke to an employee of the towing facility through the small
opening in a window that separates the public from the staff. He was
advised that he could not take pictures and that only the registered
owner was legally allowed to go into the yard.
Harding argued that he was the registered owner’s lawyer and could
go into the yard. After consulting a colleague, the employee advised
Harding that he would need written permission from the owner to go
look at her car.
Harding reluctantly left and went to his mother-in-law’s residence to
obtain a handwritten letter of authorization. He returned to the towing facility 45 minutes later.
An employee came to the window and advised that she would call her
manager. Harding held the handwritten letter against the glass and
said that if he didn’t have an answer in less than 10 minutes he was
going to call the police.
While waiting for the employee to return, Harding took photographs
of the reception area and personnel through the window. Another
employee told him that it was illegal to take pictures, but he continued to do so.
Harding then left the office and went to the parking area where he
phoned the RCMP. He said that he needed “someone there to talk
to these idiots because otherwise you’ll have to send a police officer probably to arrest me because I’m going to go get a crowbar and
smash up the place.”
While the RCMP dispatcher was on the line, Harding moved his car in
front of the gate to block access to the secure storage area and waited
for the police to arrive.
As there were several security cameras at the towing facility, much of
The panel had to determine whether, in the context of seeking to preserve evidence for a client, Harding violated the prohibition against
dishonourable or questionable conduct that reflects badly on the integrity either of the lawyer or of the profession and, if so, whether the
conduct is a marked departure from acceptable standards. The panel
considered three issues: the crowbar comment, taking photographs
and blocking the entrance to the storage area.
Harding’s crowbar comment was made to an RCMP dispatcher to emphasize the volatility of the situation and to persuade her that police
attendance was required. While the comment was apparently overheard by an employee, there was no evidence to suggest that Harding
intended it to be taken as a threat.
Harding acknowledged making this remark in a moment of frustration, and he provided a written apology to the Law Society. The panel
could not say that this statement, viewed in context of protecting a
client’s interest, represented a marked departure from the standard of
conduct expected of lawyers.
The panel found that, in taking the photographs, Harding did not
breach anyone’s privacy. The towing facility is a public place under
video surveillance.
While he was aggressive and rude, Harding claimed he had a duty
to create a record to protect the interests of his client. The fact that
the employees refused consent and that the towing facility asserted a policy prohibiting photographs does not make taking pictures
a marked departure from the standard of conduct the Law Society
expects of lawyers. The panel found that this act did not constitute
professional misconduct.
Harding moved his car to block the entrance to the storage area to
prevent the removal of his client’s car. It was aggressive, but done
out of the belief that it was necessary to protect his client’s interest. The panel found that this action did not constitute professional
misconduct.
Decision
The panel dismissed the citation and the three allegations against
Harding.
Citation issued December 3, 2013
Discipline hearing: May 14, 2014
Panel: Nancy Merrill, Chair, Robert Smith and John Waddell, QC
Decision issued: July 7, 2014 (2014 LSBC 30)
Counsel: Kieron Grady for the Law Society; Gerald Cuttler for Thomas
Paul Harding
Facts
In January 2013, Thomas Paul Harding was retained by a client
in a family law proceeding against her husband. The issues in the
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21
cond u ct & discip l ine
В­ roceeding included spousal and child support. The husband had been
p
jailed twice for failing to comply with court orders, prior to Harding
being retained by the wife.
On August 1, Harding and both opposing co-counsel attended court
regarding Harding’s Notice of Application dated July 24 seeking relief
against his client’s husband, which included jail for non-compliance
with earlier orders. Neither Harding’s client nor her husband was
present. The judge heard counsel on an earlier Notice of Application;
however, due to a lack of time, the judge advised he would not hear
the July 24 application on that date.
Harding and the two opposing lawyers discussed the case outside the
courtroom. According to the complainant, Harding said words to the
effect that his client’s husband should be jailed and that he might
learn his lesson after he’s been gang raped.
On the afternoon of August 1, Harding sent an email to opposing
counsel about the case and the need to schedule court dates. Cocounsel did not respond to his email.
On August 8, Harding was advised that both opposing co-counsel intended to withdraw as counsel for his client’s husband.
On August 14, one of the opposing lawyers complained to the Law
Society about Harding’s alleged comment.
Determination
There were two issues before the panel:
1. w hether Harding made the alleged comment; and
2. if he did make the comment, did the comment constitute professional misconduct?
Harding was insistent that he did not make the comment.
At the time of the incident, the complainant had been a lawyer for less
than two years and was 26 years of age. She had no previous dealings
with Harding that would have resulted in animosity or bad feelings.
The complainant did not speak to her co-counsel about the alleged
comment until a few days later when she was preparing her complaint. Her co-counsel advised that she had not heard the alleged
comment. The panel found it odd that the complainant did not speak
to her co-counsel about such an offensive comment immediately
В­after they left the courthouse.
The complainant did not respond to Harding’s email on August 1,
either to advise that she and her co-counsel would be withdrawing
from the case or to mention the alleged comment. By her silence, she
missed an opportunity to confirm the alleged comment with Harding.
On April 11, 2014, Harding wrote a letter of apology to the complainant. The letter did not constitute an admission and was prepared in
close proximity to the hearing. The panel had the impression that it
was prepared for a strategic rather than a sincere purpose.
The panel concluded that it had not been established on a balance of
probabilities that Harding made the alleged comment.
Given the panel’s finding, it was not necessary to make a determination
22
BENCHERS’ BULLETIN • FALL 2014
on whether the alleged comment constituted professional В­misconduct.
However, the panel noted that, while the alleged В­comment was
В­offensive and ill-advised, there were a number of factors that would
have prevented it from crossing the line to professional misconduct.
The alleged comment was not passed on to the complainant’s
­client, and there was no evidence that Harding’s intention, or the
­complainant’s interpretation of the alleged comment, was to persuade or ­intimidate the complainant into advising her client to comply with the court orders. Further, if the alleged comment was made,
it was made only once, outside the hearing of third parties, and in
В­understandably frustrating circumstances. The alleged comment was
found to be closer to mere rudeness or discourtesy than professional
misconduct.
The panel dismissed the allegation that Harding’s actions constituted
professional misconduct.
DOUGLAS BERNARD CHIASSON
Squamish, BC
Called to the bar: May 18, 1990
Discipline hearing: May 22, 2014
Panel: Thomas Fellhauer, Chair, Don Amos and Jennifer Chow
Oral reasons: May 22, 2014
Decision issued: July 30, 2014 (2014 LSBC 32)
Counsel: Alison Kirby for the Law Society; Douglas Bernard Chiasson on
his own behalf
Facts
In March 2007, Douglas Bernard Chiasson was retained by a client in a
personal injury matter related to a motor vehicle accident. Chiasson
and his client entered into a written contingency fee agreement that
provided that he would be paid, among other things, an amount equal
to 25 per cent of any settlement money plus disbursements.
From March 2007 to May 2010, Chiasson corresponded with various
medical practitioners on his client’s behalf, contacted the Insurance
Corporation of British Columbia (ICBC) regarding a settlement offer, met with his client; and filed and served a writ of summons and
В­statement of claim.
Between May and October 2010, other than submitting further receipts to ICBC, Chiasson did nothing to advance his client’s claim.
Between October and December 2010, he corresponded with ICBC
regarding his client’s benefits.
In December 2010, Chiasson sent his client a letter enclosing a cheque
from ICBC and updating her on requests to ICBC for reimbursement of
medical expenses.
Between December 2010 and May 2012, despite being contacted
by ICBC counsel requesting information about service of the writ
and statement of claim, Chiasson did nothing to advance his client’s
claim. In particular, Chiasson failed to return telephone calls, failed
to contact ICBC at his client’s request, took no steps to advance the
cond u ct & discip l ine
claim and failed to provide progress updates to his client.
In May 2012, the client told Chiasson that he was fired. Chiasson continued to act on the client’s behalf, but did not attempt to contact her
between May and November 2012.
In June 2012, Chiasson’s client made a complaint to the Law Society.
In November 2012, Chiasson contacted his client seeking instructions
to settle her ICBC claim. ICBC offered to settle the claim for a sum
plus taxable costs and disbursements.
In December 2012, Chiasson accepted ICBC’s offer to settle on his
client’s behalf. He received a cheque from ICBC as settlement funds
including costs and disbursements.
Chiasson then provided his client with a cheque and a bill for legal
services. His bill was based on 25 per cent of the total settlement
amount, including costs and disbursements. This was contrary to the
written contingency fee agreement. Chiasson subsequently withdrew
the amount of his bill from his pooled trust account in payment of the
legal fees.
Admissions and disciplinary action
Chiasson admitted that his conduct constituted professional
В­ isconduct when he failed to take any substantive steps to advance
m
his client’s claim, failed to provide his client with progress updates or
answer reasonable requests for information, and continued to act on
his client’s behalf, without communicating with his client, after being
told he was fired
Chiasson also admitted that, when he withdrew funds from his trust
account to pay his fees, he ought to have known that he was not
entitled to 25 per cent of the total amount recovered on his client’s
behalf. The contingency fee agreement did not entitle him to any percentage of costs and, if it did, the agreement would have been contrary to the Legal Profession Act. Chiasson admitted that his conduct
amounted to professional misconduct.
In determining disciplinary action, the panel considered the absence
of any directly relevant or recent disciplinary history and the fact that
there was no dishonesty or deceitful conduct. The panel also noted
that Chiasson was cooperative during the investigation and prosecution of this complaint.
The panel accepted Chiasson’s admissions of professional misconduct and ordered that he pay:
1. a $4,500 fine; and
2. $1,000 in costs.v
Conduct reviews ... from page 17
Breach of confidentiality
Rules 5.1-6 and 7.2-11 of the BC Code. A conduct review subcommittee discussed ways that the lawyer could ensure that undertakings
that were not immediately required to be fulfilled, as in the case of
sales of matrimonial property, remained at the forefront of a lawyer’s
mind, such as placing prominent notes on the file. (CR 2014-08)
A lawyer denied breaching her duty of confidentiality to her client
when speaking with a social worker, claiming she was referring to the
client’s case in hypothetical terms. However, the lawyer took inadequate notes of the conversation. The lawyer now has a computerized
file management software package to keep notes of all telephone
conversations at the office. (CR 2014-10)
Rudeness and incivility
A lawyer sent correspondence to his brother and his brother’s counsel
containing rude and accusatory statements about his brother’s counsel, contrary to Rule 2.1-4 of the BC Code. The lawyer also included
materials from a Law Society complaint investigation in affidavits
sworn and filed in court, contrary to Law Society Rule 3-3(1) and section 87 of the Legal Profession Act. A conduct review subcommittee
recommended that the lawyer not permit staff to sign letters on his
behalf that contained any substantive discussions. It also suggested
that the lawyer wait 24 hours before sending any correspondence
written in haste or anger, to allow time for careful reflection. The lawyer decided to retain counsel to deal with the family dispute in light
of his personal emotional investment and its effect on his practice.
(CR 2014-09)
A lawyer attached confidential correspondence regarding a Law
В­Society complaint investigation to an affidavit, contrary to Law Society Rule 3-3(1) and section 87 of the Legal Profession Act. These
rules exist to protect the confidentiality of the Law Society’s regulatory process. The improper use by the other party of the confidential
documents did not absolve the lawyer of his own obligation to seek
the consent of the executive director. (CR 2014-12)
Breach of no-cash rule
A lawyer accepted an aggregate amount of cash in excess of $7,500
on one client matter, contrary to Law Society Rule 3-5.1(3). The lawyer has taken steps to instruct staff about the no-cash rule, including
the aggregate aspect of the rule. He is now using software to produce
monthly printouts of cash deposits for each client. (CR 2014-11) v
FALL 2014 • BENCHERS’ BULLETIN
23
ELECTED BENCHERS
LIFE BENCHERS
President
Jan Lindsay, QC*
Ralston S. Alexander, QC
Rita C. Andreone, QC
R. Paul Beckmann, QC
Howard R. Berge, QC
Kathryn A. Berge, QC
Joost Blom, QC
P. Michael Bolton, QC
Thomas R. Braidwood, QC
Cecil O.D. Branson, QC
Trudi L. Brown, QC
Mr. Justice Grant D. Burnyeat
A. Brian B. Carrothers, QC
Mr. Justice Bruce I. Cohen
Robert M. Dick, QC
Robert D. Diebolt, QC
Ian Donaldson, QC
Ujjal Dosanjh, QC
Leonard T. Doust, QC
William M. Everett, QC
Anna K. Fung, QC
Leon Getz, QC
Richard C. Gibbs, QC
Carol W. Hickman, QC
John M. Hogg, QC
H. Allan Hope, QC
Ann Howard
Gavin Hume, QC
John J.L. Hunter, QC
Judge William F.M. Jackson
Mr. Justice Robert T.C. Johnston
Gerald J. Kambeitz, QC
Master Peter J. Keighley
Patrick Kelly
Terence E. La LibertГ©, QC
Mr. Justice Peter Leask
Gerald J. Lecovin, QC
Bruce A. LeRose, QC
James M. MacIntyre, QC
Richard S. Margetts, QC
Marjorie Martin, MSW
Master Robert W. McDiarmid
Peter J. Millward, QC
Karen F. Nordlinger, QC
Thelma O’Grady
Richard C.C. Peck, QC
June Preston, MSW
Emily M. Reid, QC
David M. Renwick, QC
G. Glen Ridgway, QC
Patricia L. Schmit, QC
Norman Severide, QC
Jane S. Shackell, QC
Donald A. Silversides, QC
Gary L.F. Somers, QC
Mary F. Southin, QC
First Vice-President
Kenneth M. Walker, QC*
Second Vice-President
E. David Crossin, QC*
Joseph Arvay, QC
Pinder K. Cheema, QC
Jeevyn Dhaliwal
Lynal E. Doerksen
Tom Fellhauer
Craig A.B. Ferris
Martin Finch, QC
Miriam Kresivo, QC*
Dean P.J. Lawton
Jamie Maclaren
Sharon Matthews, QC
Nancy G. Merrill*
Maria Morellato, QC
David W. Mossop, QC
C.E. Lee Ongman
Gregory A. Petrisor
Philip Riddell
Elizabeth Rowbotham
Herman Van Ommen, QC*
A. Cameron Ward
Sarah Westwood
Tony Wilson
APPOINTED BENCHERS
Haydn Acheson*
Satwinder Bains
David Corey
Peter B. Lloyd
Benjimen Meisner
Claude Richmond
EX OFFICIO BENCHER
Attorney General and Minister
of Justice Suzanne Anton, QC
* Executive Committee
Richard N. Stewart, QC
Marvin R.V. Storrow, QC
William J. Sullivan, QC
G. Ronald Toews, QC
Russell S. Tretiak, QC
Benjamin B. Trevino, QC
William M. Trotter, QC
Gordon Turriff, QC
Dr. Maelor Vallance
Alan E. Vanderburgh, QC
Art Vertlieb, QC
James D. Vilvang, QC
Brian J. Wallace, QC
Karl F. Warner, QC
Warren T. Wilson, QC
David A. Zacks, QC
EXECUTIVE TEAM
Chief Executive Officer and
Executive Director
Timothy E. McGee, QC
Chief Legal Officer
Deborah Armour
Director, Lawyers Insurance Fund
Susan Forbes, QC
Tribunal and Legislative Counsel
Jeffrey Hoskins, QC
Chief Financial Officer / Director of
Trust Regulation
Jeanette McPhee
Director, Education and Practice
Alan Treleaven
Chief Information and Planning
Officer
Adam Whitcombe
845 Cambie Street, Vancouver, British Columbia, Canada V6B 4Z9
Telephone 604.669.2533 | Facsimile 604.669.5232
Toll-free 1.800.903.5300 | TTY 604.443.5700
lawsociety.bc.ca
Lawyers Insurance Fund
Telephone 604.682.8911 | Facsimile 604.682.5842

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